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Osborne, Richard ORCID: https://orcid.org/0000-0003-4111-8980 (2017) Success ratios, newmusic and sound recording copyright. Popular Music, 36 (3). pp. 393-409. ISSN 0261-1430

(doi:10.1017/S0261143017000319)

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Richard Osborne

Middlesex University

The Burroughs

London

NW4 4BT

Tel: 020 8411 5724

Email: [email protected]

Success ratios, new music and sound recording

copyright

RICHARD OSBORNE

Department of Performing Arts, Middlesex University, London, UK

Abstract

This article addresses the uses that record companies have made of two rhetorical

tropes. The first is that only one in ten artists succeed. The second is that they are

investing in new music. These two notions have been combined to give the

impression that record companies are risk taking both economically and

aesthetically. They have been employed to justify the companies’ ownership of

sound recording copyright and their system of exclusive, long-‐term recording

contracts. More recently, the rhetoric has been employed to combat piracy, extend

the term of sound recording copyright and to account for the continuing usefulness

of record companies. It is the argument of this article that investment in new music

is not necessarily risk taking; rather, it is policies derived from risk taking that

provide the financial security of record companies.

Introduction

PolyGram lawyer: Fiscally speaking, in 1972 American Century claimed

six million dollars in profits yet 92% of the records you released were –

speaking frankly -‐ flops.

Richie Finestra, head of American Century Records: Technically, yes, but

in reality they only look like flops.

Head of PolyGram: Please explain . . .

In Martin Scorsese’s Vinyl (2016) the record industry bosses come clean. Risk

taking is no risk at all. New artists -‐ ‘not your most sophisticated individuals’ -‐

are desperate to sign deals. They are given large advances but their contracts

contain the magic word ‘recoupable’. Finestra outlines the consequences:

No matter how many records they sell, the actual cost of producing that

record always comes out of the artist’s end. Physically manufacturing the

record; touring costs; studio space; marketing; packaging; if a drummer

drinks a Pepsi in the middle of recording that album, believe me he’s

paying for it at a 700% mark up. We really don’t have any downside.

His head of promotions backs him up, ‘we practically break even on all the flops.

But the hits? That’s where we cash in big’.

Vinyl is set in 1973, but its success ratio was in evidence 25 years earlier

and is still being propounded today. For more than half a century, record

companies have claimed that only one in ten of their artists will succeed. Michael

Jones has argued that ‘We do not have to ask why the music industry lives with

such a high failure rate; the answer is, simply and quite brutally, because it can

afford to’ (1997, p. 28). It is nevertheless worth raising this question. Contrary to

Vinyl, the industry has maintained that its flops are flops: they result in losses for

the companies concerned. It is the other half of the equation that makes the

failure rate affordable. The record business is centred on blockbuster hits: the

gains of the successes outweigh the losses of the failures. This much has been

acknowledged (Frank and Cook 2010, pp. 106-‐10). What has received less

attention is the strategy that underpins these economics. One reason why record

companies can afford failure is because of failure itself.

It is a strategy that is underpinned by rhetoric. The companies have

combined two particular tropes. The first is the success ratio itself. It has been

consistently utilised but is hard to verify. The second is that record companies

are risk-‐taking investors in new music. This trope casts the first in a benevolent

light. Artists are not failing because record companies are bad at their jobs; they

are failing because record companies dare to push boundaries. This rhetoric has

had profound effects. It has been employed to justify stringent aspects of

recording contracts and it underpins the record companies’ ownership of sound

recording copyright. Ultimately, it defends the economic base that the recording

industry is built upon.

This article explores the evolution of this rhetoric. It concentrates most

fully on the British market, beginning by outlining sound recording copyright

ownership under UK law. It then turns to the one in ten statistic, tracing its usage

within the record industry and its analyses within academia. The article next

addresses the rhetoric of ‘new’ music, examining how risk taking has been used

in defence of the record companies’ ownership of sound recording copyright and

then as a means to combat the piracy of this copyright and to extend its term.

Although UK law relating to sound recording copyright has its own quirks and

the use of industry rhetoric within the country has particular emphases, the

ground covered here can be taken more broadly. Accordingly, the final section of

this article looks at the promotional literature of the International Federation of

the Phonographic Industry (IFPI). This organisation uses the rhetoric of success

ratios and new music to argue that there is still a need for record companies in

the digital age.

Sound recording copyright in the UK

In the early 1990s, the British Monopolies and Mergers Commission (MMC)

investigated the cost of compact discs in the UK, prompted by concerns that their

high price was a result of monopoly situations within music businesses (MMC

1994, p. 3). The Commission’s findings were summarised in The Supply of

Recorded Music, which has been described by Martin Cloonan as ‘the most

detailed analysis yet undertaken by a government body on the ways in which

parts of the music industries [...] work’ (2007, p. 70). This report’s main focus is

on record companies. From the outset it underlines their financial core, stating

that ‘Copyright is central to the operations of the record industry’ (MMC 1994, p.

3). It is sound recording copyright that is being referred to here: the ownership

of the recording masters. This right gives the companies control of the

recordings; payment will be due to them for any sale or usage throughout the

duration of the copyright term. In addition, as the International Managers Forum

(IMF) pointed out to the MMC, ‘the copyright catalogues of the record companies

are their most valuable asset’ (ibid., p. 173).

The Supply of Recorded Music suggests that ‘Under the 1988 Copyright Act

the copyright would normally be owned by the record company’ (ibid., p. 30).

This is only partially correct. Although record companies do normally assume

control of sound recording copyrights, ownership is not confirmed by the 1988

Act. The subject is dealt within in clause 9.2a, which also concerns film

production. As first published, the clause stated that the ‘author’ of these art

forms is ‘the person by whom the arrangements necessary for the making of the

recording or film are undertaken’ (CDPA 1988, p. 5).1 ‘Arrangements’ is a loose

word. It could indicate that the owner of sound recording copyright is the party

that commissioned it. If so, the record companies possibly are the proper

owners. There are many parties involved in arranging a recording project, but it

is the signing policies and release schedules of record companies that determine

the existence of most commercially released recordings.2 This has not been the

record companies’ own interpretation of the term, however. They have

emphasised instead that the ‘arranger’ is the party who has paid for the

recording. Ironically, this interpretation problematizes their ownership claims.

The norm of record company ownership of sound recording copyright

was established via earlier copyright legislation. In Britain, the subject was first

covered in the Copyright Act of 1911. Clause 19.1 states that ‘first owner’ of

sound recording copyright is ‘the person who was the owner of such original

plate at the time when such plate was made’, adding that this ‘person’ can be a

‘body corporate’ (CA 1911, p. 12). In the early years of sound recording, the

owner would therefore have been the record company. At the time of the 1911

Act, music was recorded directly to acetate discs. These ‘plates’ were commonly

recorded in the record companies’ own studios and were produced and

engineered by salaried employees. Few artists had record contracts; they were

instead paid session fees and perhaps an annual retainer (Martland 2013, pp.

187-‐191). They would have had no claim to ownership of the copyright.

This position was reinforced in the Copyright Act of 1956. Clause 12.4

states that ‘the maker of a sound recording shall be entitled to any copyright

subsisting in the recording’ (CA 1956, pp. 19-‐20). The Act does add a provision,

however, stating that ‘where a person commissions the making of a sound

recording, and pays or agrees to pay for it in money or money’s worth, and the

recording is made in pursuance of that commission, that person, in the absence

of any agreement to the contrary, shall be entitled to any copyright subsisting in

the recording’ (ibid., pp. 19-‐20). This addition is indicative of changes in the

sound recording world: some sessions were now taking place away from record

company premises. It also provided several hoops that record companies had to

go through to justify their ownership of copyright. They had to have

commissioned the works and paid for them and ensured that this ownership was

not compromised in contractual agreements.

In contrast, the 1988 Copyright, Designs and Patents Act offers no

qualification of the phrase ‘the person by whom the arrangements necessary for

making the recording are undertaken’. Its definition of ownership is more

compact and it aims for greater flexibility. As well as covering both film and

sound recording, it attempts to capture developments in each of these fields.

Importantly, it legislates for a transformation in record industry practice. By the

time of the 1988 Act the contemporary method of arranging recording sessions

had been established. Most musicians are issued with recording budgets. These

are usually spent on independent recording studios with independent staff.

In support of their decision that record companies should be regarded as

the ‘normal’ owners of sound recording copyright, the MMC referred to a House

of Lords debate about the drafting of the 1988 Act. Lord Williams of Elvel had felt

that the wording of clause 9.2a was unclear and proposed instead that the

copyright owner be defined as the person ‘who commissions that recording and

pays or agrees to pay for it in money or money’s worth’; he also suggested that

film directors should share copyright ownership with film producers (HL Deb 30

November 1987). Lord Beaverbrook’s response was quoted by the MMC:

The Bill deals with copyright in sound recordings in the same way that the

present law [i.e. the Copyright Act 1956] treats films; namely, that the

first owner is the person who makes the necessary arrangements for the

recording. This approach works satisfactorily for films and we believe will

do so for sound recordings ... to give the director a copyright in the film

would not be fair to the person who has made and paid for the

arrangements for the film production. (MMC 1994, p. 51)

The ellipsis in this passage belongs to The Supply of Recorded Music itself but

Beaverbrook’s excerpted argument is worth noting. He claimed that the initial

wording of clause 9.2a ‘largely sweeps up the question of commissions since

record companies commissioning independent recording studios will be the

body making the necessary arrangements, not the studios’ (HL Deb 30 November

1987).

Lord Williams of Elvel withdrew his amendment. Consequently, clause

9.2a was published as drafted and contained no specific mention of payment for

recordings. The major British record companies wished to bring attention to this

aspect of arranging, nonetheless. In The Supply of Recorded Music they made the

following joint statement:

It was clear that, in drafting the relevant provisions of the 1988 Copyright

Act dealing with the grant of copyright in sound recordings, Parliament

had intended that the record company should be the holder of that right,

since it was the record company which generally made the necessary

arrangements for the making of the recording, including the provision of

the necessary finance. There was authority as to the meaning of ‘the

person by whom the arrangements ... are undertaken’ in relation to films.

The courts had held that the word ‘undertake’ meant ‘be responsible for’,

especially in the financial sense but also generally. It could therefore be

assumed that in using the same formula for sound recordings as for films

in the 1988 Copyright Act, Parliament had intended that copyright should

vest in the person who had undertaken the financial responsibility for

making the recording. The ownership of that copyright was the reward

for the risk they had undertaken. (1994, pp. 252-‐3)

Although record companies have usually been rewarded with this copyright,

there remains a lack of clarity around the word ‘arrangements’. Moreover, the

record companies’ claims have been undermined by their own logic. It is now

artists, rather than record companies, who take the financial responsibility for

recordings; or at least they attempt to. Artists’ recording budgets are commonly

issued in the form of advances. The record companies claw these advances back

from the artists’ royalties: these funds are ‘recoupable’. If the companies’ own

interpretation of the law is correct, then recouped artists could be regarded as

the rightful owners of the copyright in their sound recordings. They have, after

all, taken full financial responsibility for them.

The record companies’ logic is also undermined by their contracts. In an

attempt to shore up their ownership of sound recording copyrights, a standard

exclusive recording contract will stipulate that the artist must ‘assign’ the

copyright in their sound recordings to them, typically for the life of copyright.

This harks back to the 1956 Act: the companies are establishing their claims to

copyright by paying for sound recordings and making agreements. These claims

are contradictory, however. Why are record companies asking for the

assignment of copyright if they believe the 1988 Act defines them as the

‘arrangers’, and therefore the first owners, of sound recordings?

This conundrum remains unanswered. The record companies do provide

a rationale for their ownership of sound recording copyright, however. They

argue that only one in ten of their artists will achieve profitability. In highlighting

this imbalance, they suggest that, over all, it is record companies who shoulder

the risk of financing sound recordings. As such, they deserve the copyrights of

the few successes to compensate for the losses of the many failures. It is to this

one in ten statistic and its rhetorical uses that we now must turn.

Success ratios

An early use of the one in ten statistic can be found in Billboard, 21 July 1958.

Bob Rolontz calculated that there were about 100 singles released in the

American market each week, a figure he regarded as ‘overproduction’:

Since less than 10 per cent of all records released become hits, and the

figure is closer to 5 per cent than 10 per cent, the majority of them hardly

sell at all. Possibly 60 per cent of all released sell 2,000 to 3,000. Another

20 per cent sell up to 25,000. And another 10 per cent sell 50,000 or

more. The hit 10 per cent sell the 100,000 to 1,000,000 records. In other

words 80 per cent of all records released are a loss for all concerned

(Rolontz 1958A, p. 4)

From the outset we witness two characteristics of success ratios. First, they can

be measured in different ways. Rolontz begins by examining the ratio of hits to

releases and then addresses the profitability of recordings. The second is that

success rates can vary: the article alternates between 5%, 10% and 20%.

It is nevertheless the one in ten statistic that the record industry has most

commonly used. Rolontz employed it in relation to albums in the following

week’s Billboard, arguing that ‘true money making LP’s are certainly no more

than 10 per cent of all released’ (1958B, p. 10). By the following decade the

statistic was being used in Britain. In 1966, Melody Maker asked, ‘If, as the record

companies now admit, nine out of ten singles fail to make the Pop Fifty, what can

the aspiring popper do to shorten the odds against his getting that elusive hit

record’? (Melody Maker 1966, p. 8). The statistic remained in use thirty years

later. The Supply of Recorded Music reported, ‘The majors tell us that only one in

ten of the pop artists with whom they sign contracts turns out to be successful’

(MMC 1994, p. 24). A great deal rested upon this statement, but it remained

unchallenged and unverified by the MMC. British politicians were similarly

compliant. In 1997, Chris Smith, the Labour Party’s Culture Secretary, echoed

industry claims that ‘On average, 80-‐90 per cent of artists signed to record

companies will not succeed’ (1997, p. 81). Meanwhile, the ratio maintained its

presence in the US: in the early 1970s, it was argued that ‘only 10 percent [of

records] smelled “break even”’ (Denisoff 1975, p. 5); in the mid-‐1990s, it was

claimed that ‘Nine out of ten acts signed to record contracts are losers’

(Goodman 1997, p. 232). Writing in 2014, Simon Napier-‐Bell summed up the

statistic’s persistence:

the ratio of success is what it always was – for every ten artists signed,

nine will get nowhere. A contract with a major record company was

always a 90 per cent guarantee of failure and it still is today. (2014, p.

285)

The endurance of the statistic is remarkable. It has survived despite significant

changes in record industry practice. Three factors in particular should have

affected its consistency. The first is that the industry has gone through peaks and

troughs. The usual reaction of record companies during leaner times is to cut the

size of their artist rosters and introduce more cautious signing policies. As a

result there should be a higher ratio of hits to releases during hard times, at least

if measured in relation to chart entries. The second is that major record

companies have moved from an industry model whereby they manufactured

records, to one where there is there is less physical manufacture, most of which

is undertaken by outside companies. In the 1970s, the majors’ manufacturing

interests were viewed as a cause of overproduction, as these companies needed

to generate sufficient product to keep their pressing plants busy (Denisoff 1975,

pp. 97-‐8). Manufacture also provided a platform from which to experiment. The

majors manufactured product for smaller companies, thus gaining a steady

stream of income that safeguarded them against the ‘adverse financial impact

resulting from the considerable risk involved in speculative investment in new

recording artists’ (Hill 1978, p. 32). As such, some commentators believe they

took greater artistic chances when they were in the manufacturing business

(Harrison 2011, p. 171). The third factor is that record companies have become

increasingly sophisticated when it comes to consumer data. From an industry

which did little audience analysis, we now have one that conducts detailed

market research, taking full advantage of the digitisation of consumer activity

(Frith 2001, p. 34). Despite this wealth of data, the one in ten success rate

persists.

The ratio is slippery, however; it has been used to measure different

things. As we have moved through this time period it has less regularly been

employed in relation to the ratio of hits to releases, which is just about

quantifiable, to instead addressing the proportion of records that are profitable.

When it comes to profitability, we have to trust the record companies’ own

calculations. They do not publicise precise sales figures, nor do they detail

breakeven points of releases, which can vary widely (Osborne 2014, pp. 164-‐6).

There has also been variation regarding which breakeven point they use.

Sometimes they employ the statistic in relation to the recoupment of an artist’s

personal, recording and video advances; at others it is applied to the overall

expenditure on a release, adding in the costs of manufacture, distribution,

marketing and promotion. What also gets obscured is the fact that artists and

record companies have different breakeven points. A ‘failed’ record for an artist

may be profitable for their record company. Interviewed in 1971, Warner

executive Joe Smith admitted that his artists received a lower share of profits

than his company did, therefore their debts took longer to pay off: ‘they’re

recovering it at a lesser rate than we are’ (Sanjek and Sanjek 1991, p. 212). He

calculated that it would take sales of 100,000 albums for an artist to recoup ‘their

advance and recording costs, and from then on they’re making money. But only

10 to 15 percent of the albums sell that well’ (ibid.).

Some academics have questioned the veracity of success ratios. Writing in

the 1990s, Keith Negus reported an industry belief that only one in eight artists

recoup their advances. While arguing that this is ‘an elusive figure, hard to verify

and as mythical as it is statistical’, he noted that some genres have a higher hit

rate than others (1999, pp. 47-‐50). In 2013, Lee Marshall listed a number of one

in ten citations. He questioned their ‘seeming truism’ and suggested ‘the failure

rate may not be as high as conventionally perceived’ (2013, pp. 583, 584). Other

academics have tested the ratios out. In the early 1970s, Simon Frith quantified

‘A Year of Singles in Britain’, finding a success rate of ‘about one in eleven’ (1974,

p. 40). In addition, he discovered that independent labels had a better

profitability ratio than majors (ibid., p. 39). Jones undertook a similar exercise in

1995, tracking a week’s worth of single releases to monitor how many made the

charts (1997, pp. 38-‐48). His main concern was nevertheless with the overall

profitability of acts. Although he discovered that ‘the scale of failure is still

enormous’, he conceded:

Without knowing the extent of the recording and the promotional budgets

for a new act; or the extent of recoupable debt for an ‘established’ act, we

cannot know the sales target figure for a release by that act. Without

knowing the sales target figure, and with no access to actual numbers of

records sold, we can’t judge whether the act in question is regarded by

their label as either succeeding or failing. (ibid., p. 47)

While the statistic has remained much the same, the academic accounts of it have

changed. In the 1970s and 1980s it was used as evidence of a ‘mud against the

wall’ approach to releasing music (Chapple and Garofalo 1977, p. 14). Paul

Hirsch documented a record company belief that ‘There are no formulas for

producing a hit record’ (Hirsch 1971/2, p. 655). Labels would therefore issue an

array of titles, hoping some would stick. Bernard Miège drew pessimistic

conclusions from this scenario, arguing that it resulted in job insecurity and

impecuniosity for artists (1989, pp. 89-‐90). In contrast, Frith saw it as evidence

of consumer sovereignty (1978, p. 97). For David Hesmondhalgh the signing

policies of these decades resulted in ‘a substantial degree of artistic innovation

and experimentation’ (2013, p. 249).

By the 1990s, the costs of recording, promoting and marketing records

had increased considerably (Negus 1992, p. 40). This was also the era in which

more sophisticated methods of audience and sales analysis took hold. Negus

argued that this resulted in ‘a straightforward reluctance to experiment, a

reduction in risk-‐taking and a propensity towards a partial view of the world’

(1999, p. 52). Jones suggested that record companies were no longer involved in

‘overproduction’; they were instead ‘over-‐signing’ new acts (1997, p. 313). This

policy was considered to be more cost-‐effective. Although record companies

would ‘initiate the commodification of a number of commodities’, they would

‘choose to concentrate marketing and promotional resources on only a

proportion of these on the basis of “intelligence” garnered from the market place’

(ibid., p. 149). The essential point of analysis was no longer what happened once

a record was in the market, but the system of prioritisation that had taken place

before it was released.

Building on these studies, some writers have suggested that record

companies have a systematic approach to failure: it is the condition to which the

industry constantly aspires. By 2001, Frith was viewing success ratios in a new

light. He asked, ‘What if a record’s failure reflects not the irrational activities of

musicians and consumers but the perfectly rational activities of record

companies themselves?’ (2001, p. 47). In contemplating why a record company

would chose not to promote some of its artists, he outlined the following areas of

policy:

the development of the portfolio management structure; the carefully

orchestrated programme of global release and promotion; the calculation

of what budgets are available for what products when; a sense at any one

moment of to which project is makes most sense to devote energy. (2001,

p. 48)

More recently, Marshall has suggested that ‘the high failure rate associated with

the record labels can [...] have some beneficial aspects for labels’, pointing out

that it ‘serves important rhetorical purposes in relation to governments, policy

makers, and consumers, and [...] in contractual negotiations with its artists’

(2013, p. 584).

Although profitability is difficult to verify, the statistic should not be

dismissed out of hand. The majority of recording projects do fail to breakeven.

More importantly, Marshall is right: the success ratio has been tactically

employed. It has been used in defence of a contractual system that binds artists

to record companies in exclusivity for long durations, with any options regarding

duration being in the company’s favour. It has also justified the companies’

ownership of sound recording copyright. The Supply of Recorded Music is

illustrative of industry thinking. The record companies argued that ‘exclusivity

and other provisions on copyright and length of contract are essential to enable

the industry to function at all’ (MMC 1994, p. 13). Having heard evidence from

each of the major record companies, the MMC decided:

It was only by concluding contracts which embodied such terms as

retention of copyright, exclusivity and a reasonable length of contract

term that the companies could reap the necessary long-‐term benefits for

those few artists who succeeded and that the artists who succeeded could

reap the long-‐term benefits in their development and career. (1994, p.

251).

But why have so few artists achieved profitability? One reason is because they

are given high advances, which are therefore difficult to recoup. Giving evidence

to the MMC, the record companies maintained that ‘in general new artists

currently preferred to secure larger advances and royalties rather than

ownership of copyright’ (ibid., p. 29). This statement warranted closer

inspection. In this instance, the companies were suggesting that ownership of

recording copyright rested on contractual negotiation rather than being

determined by the 1988 Act. This allowed them to promote artist agency when it

came to the setting of advance fees, although they had elsewhere admitted at

least partial responsibility for their scope: one of the major labels argued that

they were set ‘between that level of advance necessary to persuade the artist to

accept the offer in preference to a rival record company, and a prudent

maximum, given the unpredictability of an artist’s reception in the market’ (ibid.,

p. 227). The record companies were also suggesting that, for artists, high

advances and copyright ownership should be considered mutually exclusive, but

this argument rested on the failure of most artists to recoup. We therefore need

to ask whose interests have best been served by the system of high advances.

Another reason why so many records fail to achieve profitability is

because of the high costs of marketing and promotion, but these costs are high

because there are so many records. Broadcasters and journalists are faced with a

plethora of releases. One way to filter them is to assess marketing expenditure.

Marshall noted that ‘failing to spend substantial amounts on independent

promoters makes it look like the label is not serious about a record, thus

dooming it to failure’ (Marshall 2013, p. 583). This expenditure has enabled

major record companies to exercise their power. In America, for example, there

have been times when promotion has become so expensive that only the largest

labels can afford it, thus providing ‘a means to keep small companies off the

charts’ (Dannen 2003, p. 264).

It is the major record companies, ultimately, who have set the bar for the

success ratio high, and yet they have argued that they deserve compensation for

its effects. In doing so, they have received ample rewards. Their contractual

policies have received official approval and their ownership of copyright has

been endorsed. To achieve this, however, they have had to cast their failure in a

positive light. And this is where the rhetoric of new music comes in.

New music

The tactical employment of new music is a recent trend when compared with the

rhetoric of success ratios. The two phenomena have nevertheless long been

considered in tandem. They are, for example, brought together in the 21 July

1958 Billboard article cited above. Rolontz believed that overproduction had a

negative effect on new acts, arguing that record companies provided them with

little ‘staying power’ as they were constantly looking for acts that were newer

still (1958A, p. 4).

The Supply of Recorded Music provides a more sanguine view of

overproduction. Here the record companies portrayed their contracts and

copyrights benevolently, arguing that they facilitated the sponsorship of new

British performers. They maintained:

If material modifications were made to the key provisions in recording

contracts, dealing in particular with the extent of copyright acquired by

the record company, the length of the contract and the exclusivity

provisions imposed on the artist, then the companies would be forced to

take a much more short-‐term view of their relationship with artists,

which would not only be detrimental to the longterm development of

those artists, but which would inevitably mean that the companies would

not be able to invest as widely in new UK artists as they did at present.

(MMC 1994, pp. 251-‐2)

In the 1990s, British record companies began to enter into closer dialogue with

governments. Cloonan noted that ‘key people in the popular music industries

came to realize that politicians needed to be lobbied’ (2007, p. 21). In part, this

was because their industries were being scrutinised: The Supply of Recorded

Music was one of a number of official investigations. It was also because

governments were keen to open dialogue. This interest was reflective of an era in

which the profits of heavy industry had declined while those of the cultural

industries had grown (ibid., p. 39).

Cloonan argued that the record companies were in need of ‘an image-‐

building exercise’; adding, ‘Clearly at a time when cultural policy was

increasingly becoming part of economic policy and when the music industries

seemingly felt some unease about stressing pop’s cultural value, the pragmatic

response was to make the economic case’ (ibid., p. 75). The argument they made

was nevertheless balanced between the two. While the record companies

promoted their economic worth, they also sought protection. In doing so, their

promotion of new music leant more towards its aesthetic and cultural qualities

than it did to financial policy. There was no mention of portfolio management or

budget calculations; instead there was an emphasis on the risk-‐taking nature of

supporting the new. There was less talk about the search for the next

blockbuster acts than there was about supporting the marginal, the challenging

and the forward-‐looking. The companies stressed they were signing ‘creative’

artists and issuing ‘innovative music’; they were prepared to sponsor acts with

‘minority appeal’ (MMC 1994, pp. 230, 247, 252). They were also patriotic,

providing investment for ‘new UK artists’ (ibid., p. 252).

In making their case to the MMC, the record companies drew upon an

earlier instance of successful lobbying. In support of proposals for the EC Rental

Directive, the European Commission claimed the ‘large-‐scale investments’ of

record companies’ ‘have to be protected’, as this would enable the companies ‘to

contribute to the protection of authors and performing artists’:

Only if such investment is protected will producers et al be able to invest

not only in productions which are oriented towards pure commercial

success and which would therefore guarantee a certain income, but also

in such productions which are novel, particularly demanding or unusual

in any respect and therefore less likely to be financially rewarding, but

which still represent a necessary contribution to the increasingly

threatened diversity of culture. (ibid., p. 209)

Cloonan depicted the manner in which the ‘music industries’ commonsense view

of the world’ began to permeate British governments (2007, p. 41). Although

Negus’s contemporary research had revealed a system of tight financial control

and restricted musical innovation, the record companies stressed that they were

risk taking. This tactic was employed in one of the first investigations into the

record business undertaken in this period, the National Heritage Committee’s

1993 Inquiry into CD Prices. The major companies suggested they were involved

in ‘a high risk business’. The Committee only noted that they ‘can be’, however

(ibid., p. 70).

The Supply of Recorded Music, published the following year, evidences a

new level of accord with the record industry. There was now agreement that it

was a ‘high-‐risk business’, driven by the search for new artists (1994, p. 4). The

record companies had much to gain by highlighting their risk-‐taking deeds. They

were used in defence of their ownership of sound recording copyright: the MMC

conceded that ‘since the record companies take the risk of investing in artists

when they are unknown, they should not have the rewards taken away on those

occasions when their investment turns out to be successful’ (ibid., p. 30); they

supported the system of exclusive, long-‐term contracts: the companies argued

that these provided the platform from which ‘to take the very significant risks in

investing in new artists’ (ibid., p. 251); and they justified the high price of CDs:

the labels maintained that by controlling these costs they could ‘generate

sufficient funds to invest in […] new music and artists’ (ibid., p. 230).

Although the MMC endorsed each of the record companies’ claims, their

suggestions did not go uncontested. Giving evidence to the Commission, the IMF

questioned the companies’ quantification of success. They argued that the one in

ten success ratio was based on a short-‐term analysis of an artist’s profitability,

pointing to the fact that record companies would retain copyright in the sound

recordings for 50 years, regardless of whether an artist was signed to them.

Consequently, it could accrue income long after an artist had been dropped on

account of non-‐profitability. They noted that, whereas the losses from

‘unsuccessful’ artists would be detailed in company balance sheets, the value of

their copyright catalogues would not appear there (ibid., p. 173). The IMF

proposed instead a shorter term of sound recording copyright, suggesting a

period of 10 years, after which the rights would ‘revert’ to the artist. This, they

believed, would give artists greater bargaining power in their negotiations with

the industry, as the value of these copyrights would reduce the need to ‘obtain

capital [...] on disadvantageous terms’ (ibid., p. 211). The IMF maintained that the

‘more genuinely competitive environment that would follow from these changes

would [...] also lead to lower prices to the consumer, due to the greater efficiency

that would ensue from this heightened level of competition (ibid.).

Others, too, have queried the record companies’ benevolent self-‐

portrayal. Miles Copeland, who has had a successful career as both a manager

and as a head of record labels, stated that ‘If you’re trying to build a record

company, and you’re trying to build an asset, what you really try to do is you try

to find a young artist that you can sign and develop’ (Stahl 2013, p. 155). While

he stressed these are ‘the riskiest ones’, he admitted they are ‘where you’re going

to get the most return. When I go to the marketplace to try to borrow additional

money, or get investment in my company, they’re going to look at what are the

potential returns of [my] company’ (ibid.).

New artists offer good returns because they are contractually weak. In a

competitive business, in which only a small proportion of artists are successful

and an even smaller proportion is signed, a prospective artist has little

bargaining power. Those who do manage to secure record company interest will

generally be on lower royalty rates than established artists and their contracts

will contain a greater number of restrictive clauses (Dannen, 2003, p. 79; Jones

2012, p. 52; Negus 1992, pp. 149-‐50). Anita Elberse has argued that ‘Locking acts

in when they do not yet have any bargaining power ensures that the labels can

benefit longer from their investments in talent development’ (2014, p. 199).

Leslie F. Hill, while a director at EMI, conceded that new artists have ‘the greatest

profit potential for the company’ (1978, p. 35).

In their dialogue with governments, record companies have claimed their

ownership of copyright and restrictive contractual system support the creation

of new music. The reverse is also true: it is new music that supports the record

companies’ system of ownership and control. Given that the sponsorship of new

artists makes record companies look good as well as helping to ensure their

profitability, it is little wonder that has been emphasised in further industry

campaigns.

New uses for new music

In the 21st century, the British record industry has sought governmental backing

in two key areas: the need to combat the digital piracy of sound recording

copyright, and their desire to increase the duration of its term. In both cases new

music has been utilised.

Consumers Call the Tune, issued in 2000, was the first British

governmental report to consider the effects of the ‘on-‐line revolution’ on the

music industries (DCMS 2000, p. 3). It contains a call for ministers to take action

against the digital theft of the record companies’ copyrights; in his foreword to

the document, Chris Smith noted this is ‘a message we hear loud and clear’

(DCMS 2000, p. 3). The record companies argued that failure to bolster

intellectual property laws would reduce the supply of new music. Martin Mills,

head of Beggars Banquet, maintained, ‘if today’s music isn’t paid for, tomorrow’s

music won’t be made’ (DCMS 2000 5). Geoff Taylor, Chief Executive of the British

Phonograph Industry, evidenced similar logic in Digital Music Nation 2010, a

campaigning report issued by his institution. He claimed that, via a more tightly

policed internet,

not only do we give our music the chance to flourish, but we will spur on

digital innovation and investment. If we falter and lack the courage to act,

we risk creating a serious cultural deficit in the UK. The voices of a

generation of new bands and artists simply won’t get signed and won’t be

heard. (BPI 2010, p. 2).

The lobbying for an increased term of sound recording copyright began in 2002,

when Phonographic Performance Ltd (PPL), the record company-‐owned

collecting society that licences the use of recorded music in public, first raised

the issue with the DCMS (Music Week 2011, p. 5). Further impetus came in 2004,

when the trade journal Music Week launched a support campaign (Music Week

2004, pp. 6-‐7). By 2006, the record companies’ case was being heard as part of

the Gowers Review of Intellectual Property, commissioned by Gordon Brown

when Chancellor of the Exchequer (Gowers, 2006, p. 48). Indeed, according to

Nicholas Cook, the campaign was ‘one of the specific reasons why the Gowers

Review was set up’ (2012, p. 608).

In making their case, the British record companies argued that ‘extension

of term would increase the incentives to invest in new music [...] as there would

be longer to recoup any initial outlay (Gowers 2006, p. 49). Music Week

maintained that if the 50-‐year term remained in place, record companies would

take fewer risks: ‘labels will invest in safer options, they will stop backing the

challenging artists for which the UK is renowned’ (Music Week 2006, p. 9).

Making the case for extension was to prove harder than enlisting support

for copyright infringement, however. In seeking evidence that a longer term

‘would increase the incentives for record companies to invest in new acts’,

Andrew Gowers was informed by 17 economists, ‘including five Nobel Prize

winners’, that any extra money generated would be ‘negligible’ (Gowers 2006, p.

52). The economists argued that ‘most sound recordings sell in the ten years

after release, and only a very small percentage continue to generate income, both

from sales and royalty payments, for the entire duration of copyright’ (ibid.). The

Gowers Report pours scorn on the idea that a longer life of copyright will provide

younger musicians with ‘incentives to make music’ (ibid.). Giving evidence, Dave

Rowntree commented, ‘I have never heard of a single one [band] deciding not to

record a song because it will fall out of copyright in “only” fifty years. The idea is

laughable’ (ibid.). More generally, the report argues that extension will benefit

established stars rather than nascent artists (ibid., p. 51).

It was suggested elsewhere that new artists might actually suffer a decline

in public performance royalties. John Smith, general secretary of the Musicians’

Union, pointed out that ‘under blanket licence arrangements all an extension of

term would do is dilute the existing pot by adding more repertoire’ (Smith 2006,

p. 8). Each performance would receive a smaller distribution royalty, as the total

money generated by broadcasting and public premises licences would not be

raised. Daniel Byrne believed that the remaining income would be skewed

towards established artists, as an extension of copyright term would reward

‘unproductive performers’ while distributing less money to ‘younger acts’

(Stanley 2011). The balance could be skewed further still, as record companies

would consequently focus greater attention on these unproductive artists.

According to Jason Toynbee a longer term would encourage the music industry

‘to promote stars and “classic” songs and recordings’, as they could ‘create

economic value from them with very little extra investment’ (Toynbee 2004, p.

133).

There was a sense that the record companies had stretched themselves too

far. Earlier claims that only one in ten artists succeed could not be squared with a

belief that copyright extension would benefit new acts. The Gowers Report

instead reminds us that:

Eighty per cent of albums never recoup costs and so no royalties are paid to

the creator. […] If the purpose of extension is to increase revenue to artists,

given the low number of recordings still making money 50 years after

release, it seems that a more sensible starting point would be to review the

contractual arrangements for the percentages artists receive. (2006, p. 51)

Gowers rejected the record companies’ logic, arguing that term extension ‘would

not increase the incentives to invest, would not increase the number of works

created or made available, and would negatively impact upon consumers and

industry’ (ibid., p. 56).

In coming to his conclusions, he reached back to early debates about

copyright. Britain’s first copyright law, the 1710 Statute of Anne, makes its

intentions clear in its title. It is ‘An act for the encouragement of learning, by

vesting the copies of printed books in the authors or publishers of such copies,

during the times therein mentioned’. The Act strikes a balance: as an incentive to

produce, there should be copyright in artistic works; to ensure these works enter

the public domain, and can therefore best inspire future authors, the term of

copyright should be limited. Gowers alluded to this trade-‐off in his report, noting

that a properly functioning copyright system is one where ‘incentive to innovate

is balanced against the ability of follow-‐on innovators to access knowledge’

(ibid., p. 45). He also quoted Lord Macaulay, who argued in 1841 that ‘it is good

that authors should be remunerated; and the least exceptionable way of

remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the

good we must submit to the evil; but the evil ought not to last a day longer than is

necessary for the purpose of securing the good’ (ibid., p. 50). According to this

belief, it is a limited duration of copyright that encourages new work.3

This was nevertheless not the end of the campaign for copyright extension

and nor was it the end of record companies’ enlistment of political support. The

pro-‐extension campaigners turned their focus upon the European parliament. To

this end, John Kennedy of IFPI and John Smith of the Musicians’ Union met with

Charlie McCreevy, European Commissioner for Internal Market and Services. In

February 2008, McCreevy launched a proposal, seeking a sound recording

copyright term for the EU of 95 years. After three more years of debating and

redrafting, during which Britain’s Labour government eventually came out in

favour of term extension, the European Parliament agreed on a period of 70

years (Harkins 2012, p. 642).

In celebrating this outcome, Geoff Taylor could not resist mentioning new

music: ‘A longer copyright term is also good news for music fans, as it will ensure

that UK record labels can continue to reinvest income from sales of early

recordings in supporting new British talent. (Ashton 2011). Fran Nevrkla,

chairman of PPL, stated similarly, ‘The enhanced copyright framework will […]

enable the record companies, big and small, to continue investing in new

recordings and new talent’ (ibid.).

The rhetoric of risk-‐taking investment has been employed to safeguard the

record companies’ ownership of sound recording copyright, to defend this

copyright from piracy, and to extend its term. A measure of the companies’ faith

in this rhetoric is that it has been adopted by IFPI, their global trade body.

Moreover, investment in new music is now being used for an all-‐encompassing

cause: to explain the need for record companies.

Investing in music

The profitability of record companies has fallen. IFPI has charted a decline in

global income from US$ 27.3bn in 1999 to US$ 14.9bn in 2014 (IFPI 2012B, p. 7;

IFPI 2015, p. 6). Biennially since 2010, this organisation has issued Investing in

Music reports, arguing that, despite this decline, record companies offer

prospective artists their best chance of success. Ann Harrison believes the aim of

the reports is to ‘debunk suggestions that an artist can develop careers in the

business without needing a label’ (2011, p. 64). The reports suggest as much,

maintaining ‘There has been a mistaken belief among some that the role of labels

would be diminished in the digital age’ (IFPI 2014, p. 6).

In making their case, IFPI have stressed that new artists are at the heart of

record companies’ concerns: each report claims they are the ‘lifeblood’ of the

industry (2010, p. 6-‐7; 2012A, pp. 7, 9; 2014, p. 6). The reports offer daunting

figures regarding the amount of money it costs to break a new act. A spend of

‘between US$200,000 and US$500,000’ in 2012 had risen to ‘US$500,000-‐

2,000,000’ by 2014 (2012A, p. 11; 2014, p. 7). What they do not admit is that

these costs are partly attributable to the companies’ escalating promotional

wars, which are in turn derived from the fact that more artists are signed than

will succeed.

There is one concession to previous practice, however. The one in ten

ratio is revised. Left as it was, it could have been taken as evidence that record

companies are not viable: why sign with them if there is only a slim chance you

will succeed? Consequently, the 2012 report tells us ‘the most common estimate

cited by senior music company management is a success ratio of one in five. This

is more than the commonly estimated one in ten ratio of a decade ago, reflecting

a generally higher success rate than was previously the norm’ (2012A, p. 11).4

However, just as record companies provided little evidence for their earlier

statistic, this revision is offered without any proof.

The ratio is balanced with the idea that record labels support a ‘wide

community of artists, many of whom will not be commercially successful’ (2010,

p. 5). Failure is employed as a means of demonstrating altruistic ways. IFPI claim

that, while ‘Continually investing in new talent is a hugely risky business’, it is

record companies who ‘shoulder the financial risk inherent in trying to break a

new act’ (2010, p. 6; 2014, p. 5). According to Nick Raphael, president of Capitol

Records UK:

We put just as much effort and money, if not more so, into the acts that

don’t succeed as with those that do. There may be any number of reasons

why they don’t connect with the audience, but it is not for lack of effort

and support from labels that want them to succeed. (2014, p. 9)

There is no mention of the strategic prioritisation of acts. The reports claim

instead that ‘longterm’ contractual involvement is of benefit to artists. It allows

them ‘to develop their own brand identity and earn a living from different

sources’ (2010, p. 7).

It is not just prospective artists who are expected to read these reports,

but also policy makers within governments. To this end, IFPI claim that

investment in new music benefits ‘the economy as a whole’ and that record

companies have ‘sustained their investment in artists despite the significant fall-‐

off in overall sales revenue’ (ibid., pp. 5, 7). The reports provide a reminder that

‘A&R spending today [...] is under greater pressure than ever from the impact of

illegal file-‐sharing and other forms of piracy’ (ibid., p. 9) and they boast that

record companies invest more money in ‘research and development’ than the

pharmaceutical and biotechnology sector (2012A, p. 9; 2014, p. 9). In order to

continue this practice, however, the record companies’ ownership of copyright

needs to be maintained:

It is copyright that makes investment in music possible. It is copyright

that allows the industry that helps artists gain a return on its investment,

and therefore plough back new funds and resources into the next

generation of talent. And it is copyright which underlies the endeavours,

the risks and the successes that fill the pages of this report. (ibid., p. 4)

The 2014 Investing in Music report come closes to declaring the record

companies’ self-‐interest. Placido Domingo, Chairman of IFPI, states that ‘instead

of calling this report Investing in Music, it could also be titled Investing in

Copyright’ (2014, p. 4). For the most part, however, this investment is not

discussed as resulting in something that the record companies will profit from or

own. The suggestion, instead, is that any income derived from this right will be

ploughed back into the future: IFPI claim that the majority of record companies’

copyright income is spent on new music, as labels ‘reinvest the proceeds of

successful campaigns in the discovery and nurturing of the next generation of

talent’ (2012A, p. 7). In reaching this formulation, they provide a phrase that the

record companies have been grasping for in each of their campaigns and reports:

what they are peddling is a ‘virtuous cycle of investment’ (2010, p. 5). This

honourable inflection has been implied whenever they have combined the

rhetoric of their success rate with their rhetoric of newness.

Conclusion

The economic wellbeing of record companies has been underpinned by two

rhetorical tropes. The first is that only one in ten artists succeeds; the second is

that they are supporters of new music. Both tropes are problematic. The labels’

success ratios require verification and their nurturing abilities can be

questioned. Artists who are not prioritised for promotion would hardly

recommend their companies’ virtues. Moreover, record companies might be

signing new artists, quantitatively, but this does not mean that their music is

new, qualitatively. In the current century, for example, theories of ‘retromania’

have taken hold (Reynolds 2011).

This is not to say that either trope is baseless. The careers of most artists

will end in failure and the record companies will right off these artists’ losses.

There is also an element of truth in the companies’ risk-‐taking propaganda. Until

recently it has been hard to test their claims because there have been few

alternatives to their policies. This hegemony is finally being challenged. The new

decade has witnessed the rise of service companies, such as Kobalt, who perform

many of the functions of a traditional record company but do not own their

artists’ copyrights. How can they afford this? The charge levelled against them is

that they do not take risks; they can forgo copyrights because their deals are

reserved for proven artists who are old (Music Week 2015, p. 9).

It would also be wrong to claim that the record companies thought out

their rhetoric first and subsequently went in search of failure and novelty. The

reverse is the case. To acknowledge this is not to deny their strategies, however.

The important thing to monitor is how failure and novelty have been utilised to

the record companies’ advantage. There are many aspects of industry practice

that require greater scrutiny, notably the exclusive, long-‐term nature of

recording contracts and the record companies’ ownership of sound recording

copyrights. One reason why they have not received sufficient questioning is

because of the high success rate of their rhetoric.

Notes

1 Clause 9.2a was later updated. The Copyright and Related Rights Regulations of

1996 separated sound recording copyright and film into two new clauses (CRRR

1996). Clause 9.2aa of the Copyright, Designs and Patents Act states that ‘in the

case of a sound recording’ the author is ‘the producer’, a term that is clarified

using the old wording of the act: ‘the person by whom the arrangements

necessary for the making of the sound recording are undertaken’. Clause 9.2ab

provides a more radical amendment. The authors of a film are now taken to be

‘the producer and the principal director’. Where ownership was once taken to

reside solely in the party that arranged the production, the Act now awards part-‐

ownership to one of the artistic creators.

2 The major exceptions are self-‐releases or licence deals. In licence deals artists,

production companies and smaller record labels create and finance recordings,

which they licence to a larger record company for release while retaining the

underlying copyright ownership (Harrison 2011, pp. 78-‐9).

3 It could nevertheless be argued that, just as the decisions of artists are not

affected by a longer term of copyright, their access to music would be little

affected by a shorter term (Osborne 2015).

4 The 2010 report states that ‘Estimates of the success ratio vary between one in

five and one in ten (2010, p. 7). Curiously, the latest report has returned to this

state of uncertainty, stating, ‘There is no single authoritative figure for the

proportion of record companies’ signings that are commercially successful, but a

common estimate is between one in five and one in ten’ (2014, p. 8).

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